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Civil Defence Emergency Management Amendment Bill (Consistent) (Sections 14, 18, 21) [2015] NZBORARp 62 (30 October 2015)

Last Updated: 4 March 2019

Civil Defence Emergency Management Amendment Bill

30 October 2015

Hon Christopher Finlayson QC, Attorney-General

Consistency with the New Zealand Bill of Rights Act 1990: Civil Defence Emergency Management Amendment Bill

Purpose

1. We have considered whether the Civil Defence Emergency Management Amendment Bill

(‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). This advice has been prepared in relation to the

latest version of the Bill (PCO 19253/15.0). We will provide further advice if the final version of the Bill includes amendments affecting the conclusions in this advice.

2. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In doing so, we have considered potential issues with section 14 (freedom of expression), section 18 (freedom of movement), and section 21 (unreasonable search and seizure).
   

The Bill

3. The Bill amends the Civil Defence Emergency Management Act 2002 (‘the Act’) to enable better recovery from, and ensure public safety following, small to moderate scale emergencies. The Bill:
   
   • provides a mandate for roles and responsibilities that apply for the duration of the recovery from an emergency;
   • strengthens recovery planning; and
   • ensures a better transition from the response to an emergency to the initial recovery period, by ensuring that appropriate and effective statutory powers and arrangements are available.
     
4. Clause 26 inserts new Part 5B to the Act. Part 5B specifies the powers of Recovery Managers and constables in relation to national and domestic transition periods, which may be imposed by the Minister of Civil Defence following a state of emergency. These powers include the power to require information, to direct the evacuation of any premise or place, and to prohibit or restrict public access to roads or public places.
   

Consistency of the Bill with the Bill of Rights Act

Section 14 – right to freedom of expression and section 21 – unreasonable search and seizure

5. Section 14 of the Bill of Rights Act affirms that everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form. The freedom of expression also includes the right to say nothing or the

right not to say certain things. [1] Section 21 of the Bill of Rights Act affords everyone the right to be secure against unreasonable search and seizure, whether of the person, property, correspondence or otherwise.

6. New section 94I, inserted by clause 26, may be seen to limit both sections 14 and 21 of the Bill of Rights Act. [2] It allows Recovery Managers to require a person to give information in their possession if the information is:
   
   • in the Recovery Manager’s opinion, reasonably necessary for the exercise of civil

defence emergency management; and

• capable of being provided without unreasonable difficulty or expense.
  

7. Clause 29 of the Bill amends section 96 of the Act to make it an offence to knowingly give false information or to intentionally fail or refuse to supply information within the specified timeframe, when that information is requested by a Recovery Manager under new section 94I.
   
8. Legislative provisions limiting a particular right or freedom may nevertheless be consistent with the Bill of Rights Act if the limit can be considered reasonable and demonstrably justified in terms of section 5 of that Act. The section 5 inquiry asks: [3]
   
   1. does the provision serve an objective sufficiently important to justify some limitation of the right or freedom?
   2. if so, then:
      1. is the limit rationally connected with the objective?
   2. does the limit impair the right or freedom no more than is reasonably necessary for sufficient achievement of the objective?

3. is the limit in due proportion to the importance of the objective?
   

9. We consider the limitations new section 94I places on the rights to freedom of expression and against unreasonable search and seizure are justified under section 5 of the Bill of Rights Act as:

• the objective of the new section reflects the Bill’s purpose of ensuring public safety by enabling recovery efforts to be better planned and managed following states of emergency. This objective is sufficiently important to justify some limitation on the rights to freedom of expression and against unreasonable search and seizure;
• new section 94I is rationally connected to the objective as the required information must be necessary to assist improved recovery during emergencies;
• the new section impairs the rights no more than reasonably necessary as Recovery Managers may only require information ‘reasonably necessary’ for the purpose of the section. The section is additionally subject to provisions in the Act providing an appeals process, exempting personal medical or legally privileged information from mandatory disclose or seizure, and limiting the use of disclosed information to the purposes of the Act; [4] and
• the limits are in proportion to the importance of the objective. This view is supported by the requirements in new section 94G for powers under new Part 5B

(including new section 94I) to be exercised proportionately and only in the public interest and where necessary or desirable to ensure a timely and effective recovery.

10. We therefore consider that, to the extent new section 94I limits the rights affirmed in sections 14 and 21 of the Bill of Rights Act, the limitations are justified under section 5 of that Act.
    

Section 18 – Right to freedom of movement

11. Section 18 of the Bill of Rights Act affirms the right to freedom of movement. The section provides that everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand.
    
12. New section 94M, also inserted by clause 26, provides Recovery Managers and constables with the power to totally or partially prohibit or restrict public access to any road or public place. The new section therefore limits the right to freedom of movement. However, we consider the limitation justified under section 5 of the Bill of Rights Act, for substantially the same reasons discussed in relation to new section 94I:
    
    • the Bill’s objective, furthered by new section 94M, is sufficiently important to justify

some limitation on the right to freedom of movement;

• new section 94M is rationally connected to the objective, as the power conferred under the section may help to ensure public safety; and
• the right is minimally limited as the power under section 94M is subject to the proportionality, public interest and necessity or desirability requirements of section 94G (discussed above). Those requirements also ensure the limitation is in due proportion to the importance of the objective.
  

13. New section 94K provides Recovery Managers and constables with the power to direct the evacuation of any premises or place, including any public place, if they deem it necessary for the preservation of human life. It also provides Recovery Managers and constables with the power to exclude any persons or vehicles from any premises or place for the same purpose. The proportionality and public interest requirements in new section 94G do not apply to new section 94K. New section 94K therefore also appears to limit the right to freedom of movement.
    
14. The particular objective of new section 94K is the preservation of human life and we consider this sufficiently important to justify some limitation on the freedom of movement. There is also a rational connection between that objective and the limitation imposed by the section. Even though the section is not subject to the requirements in section 94G, we consider it impairs the right no more than reasonably necessary as it authorises the power only for the preservation of human life. For the same reason, we also consider the limitation to be in proportion to the importance of the objective. We therefore consider that new section 94K is also consistent with section 18 of the Bill of Rights Act.
    

Conclusion

15. We have concluded the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.
    

Jeff Orr

Chief Legal Counsel Office of Legal Counsel

Disclaimer

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Civil Defence Emergency Management Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.

Footnotes

[1] Slaight Communications v Davidson 59 DLR (4th) 416; Wooley v Maynard [1977] USSC 59; 430 US 705 (1977).
[2] Based on recent case law, Butler and Butler consider the question of whether section 21 applies outside law enforcement contexts is undecided. To the extent the right applies to regulatory or other functions of the State, it may be seen to be limited by new section 94I; see Butler and Butler, The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis NZ, Wellington, 2015) at 18.8.1.

[3] Hansen v R [2007] NZSC 7 [123].

[4] Civil Defence Emergency Management Act 2002, sections 77, 82 and 83 respectively.